What Happens if My Employer Mandates COVID Vaccines and I have a Medical Exemption?

We’ve covered in a previous article the general principles that will apply to employers deciding to implement a mandatory COVID vaccination policy.

But what happens if you have a medical contra-indication which prevents you from getting the vaccine? What should you do in those circumstances, and what can your employer legally do?

The answer, as you might expect, isn’t black and white.

What Conditions Allow me to Get a Medical Exemption to the COVID Vaccine?

Ultimately this is going to be a discussion between you and your medical practitioner, given the regularly updated information available about both COVID and the vaccine.

Contraindications

However, as it currently stands (January 2022), the list of direct contraindications published by ATAGI that might mean you are eligible for an exemption to an mRNA type (being the most common in Australia now) vaccine are:

•             anaphylaxis to a previous dose of an mRNA COVID-19 vaccine (Spikevax or Comirnaty) is a contraindication to further doses of either vaccine

•             anaphylaxis to any component of the vaccine, including polyethylene glycol (PEG)#

•             any other serious adverse event attributed to a previous dose of Comirnaty or Spikevax (and without another cause identified) that has been reported to State adverse programs and/or the TGA, and has been determined following review by, and/or on the opinion of, an experienced immunisation provider/medical specialist taking into account whether repeat vaccine doses would be associated with a risk of recurrence of the serious adverse event

As you can see, 2 out of 3 involve actually getting at least one dose of the vaccine and then awaiting the results of a detailed investigation regarding your severe adverse reaction and obtaining a specialist opinion about the likelihood of it occurring again.

Precautions to Discuss with your Doctor

As well as these significant contraindications, there are some accepted precautionary situations that you can and should discuss with your doctor.

These (again as published by ATAGI) include:

• Previous immediate (within 4 hours) possible allergic reactions to the COVID vaccines, without anaphylaxis;
• Previous allergic reactions to any component of the vaccines;
• A history of anaphylaxis to previous vaccines and/or multiple drugs where relevantly overlapping ingredients might be the cause;
• A history of confirmed mastocytosis with recurrent anaphylaxis that requires treatment.

That said, these conditions don’t necessarily warrant an exemption because the guiding advice is still that the vaccine might be given under controlled or supervised circumstances.

So it’s worth working through all that with your doctor.

OK So I’m Eligible for an Exemption to the COVID Vaccine – What Next?

You’ll need a medical certificate signed by a doctor.

This can’t be the old “Bruce is unwell with a miscellaneous condition and won’t be able to attend work for 3 days” kind of certificate, however.

The certificate should set out:

1. Your full name;
2. The identity of the doctor providing the certificate;
3. The nature of the contraindication; and
4. Whether the contraindication is temporary or permanent.

Isn’t this a Breach of My Privacy?

No.

While many internet statements suggest you should cite privacy legislation and refuse to answer questions about medical contraindications, this is not true.

Your employer is entitled to ask, and you are required to answer, private or personal questions that are directly relevant to your role in the workplace.

And, for an employer that has implemented a mandatory COVID vaccination policy from which you are seeking to be exempt, questions about the nature of your claimed exemption fall within the category of “reasonable”. However, if you are victimised or discriminated against as a result of your medical condition, you may have grounds for a discrimination claim.

So My Employer Accepts I am Exempt – What Happens Now?

If you have established that you have a valid exemption from the vaccine, your employer now needs to make a decision.

There is no decisive guidance on what they can and cannot do next.

The government recommendations for employers in designated high-risk workplaces (hospitals, for example) suggest that if your employer assesses the risk and allows you to continue working, you can do so but must:

1. Use personal protective equipment that complies with the requirements here:
2. Get a daily PCR test that delivers a negative result.

The second requirement is, of course, fairly challenging in circumstances where PCR test results are taking longer and longer as the system is taxed with overwhelming numbers.

For other employers, however, there are a range of potential outcomes, including:

1. Change the nature of your work to a role that offers less risk;
2. Require you to wear PPE and get regular testing similar to the above;
3. Putting you on leave;
4. Directing you to work from home;
5. Terminating your employment.

In each case, the question is whether the steps the employer takes in response to your medical exemption are reasonable having regard to the overall circumstances.

Isn’t Getting Fired for a valid Exemption Medical Discrimination?

Possibly.

If you have a medical condition which leads to a valid exemption from the COVID vaccination, you might be eligible to raise a claim on the basis of discrimination arising from a medical condition if your employment is terminated as a result.

That, however, is a complex assessment and one on which you should get legal advice.

What if the Conditions My Employer Responds with are Unbearable?

In some cases your employer might take such a significant response to your exemption that you really have no choice but to leave your job.

That is, in effect they have fired you by forcing you to resign.

This could be a form of “constructive dismissal” and in some cases might result in a possible claim for unfair dismissal.

Again, this would be an area where you should seek legal advice.

It’s a Question of Reasonableness

In most cases of an employer’s implementation of a vaccine policy and its response to medical exemptions, the question is going to be one of reasonableness.

While there are many protected attributes and rights attached to medical conditions, they are often accompanied by the ability to “reasonably” intrude on those rights in a given situation.

So a digital marketing agency that fires an exempt unvaccinated employee who works entirely from home is likely to be a different situation to a medical practice that requires an exempt unvaccinated receptionist to work in the back office where they are not in regular direct public contact.

For this reason, if you want to claim a medical exemption and are concerned about your employer’s response, you should seek legal advice about your individual circumstances.

Rubix is offering a special package for employees in circumstances like this one, which you can read more about here.